Tuesday, January 2, 2018


The Pennsylvania Department of Labor & Industry, Bureau of Workers' Compensation issued the following notice

Based upon the Statewide Average Weekly Wage, as determined by the Department of Labor & Industry ... the maximum compensation payable under the Workers' compensation Act ... shall be $1,025.00 per week for injuries occurring on and after January 1, 2018. 

For purposes of calculating the update to the payments for medical treatment rendered on and after January 1, 2018 , the percentage increase in the Statewide Average Weekly Wage is three (3) percent.

Tuesday, June 20, 2017

PA Supreme Court rules Impairment Rating Evaluation remedy is Unconstitutional!

Pennsylvania Supreme Court rules Impairment Rating Evaluation remedy is Unconstitutional!

Mary Ann Protz v. WCAB (Derry Area School District) (Pa. June 20, 2017)

The Supreme Court of Pennsylvania has ruled that the PA Work Comp Impairment Rating Evaluation remedy is unconstitutional, in its entirety.

Previously, the Commonwealth Court Decision approved the continuing performance of impairment rating evaluations (IRE), albeit pursuant to the Fourth Edition of the AMA Guides to the Evaluation of Impairment. (AMA Guides). That portion of the Commonwealth Court Decision has been reversed. The Commonwealth Court ruling that Section 306(a.2) violates the non-delegation doctrine of the Pennsylvania Constitution was affirmed.

In effect, there is no longer an Impairment Rating Evaluation remedy for the Employer and Insurer.

Factual and Procedural Background

The underlying facts and procedural history in the Protz case are straightforward. Protz sustained a work related injury in 2007. The school district voluntarily began paying total disability benefits. In October of 2011 Protz underwent IRE at the school district’s request. The IRE physician evaluated Protz and assigned a 10% impairment rating based upon the Sixth Edition of the AMA Guides. As her impairment rating was less than 50%, the school district filed a Modification Petition seeking to convert her status from total to partial. This Petition would limit the duration of wage loss benefits to a period of 500 weeks.

The Workers’ Compensation Judge granted the school district Modification Petition, as the whole body impairment rating was less than 50%. Protz appealed the WCJ Decision to the Workers’ Compensation Appeal Board and argued that the general assembly unconstitutionally delegated to the AMA the authority to establish criteria for evaluated permanent impairment. The Appeal Board rejected this constitutional argument and affirmed the WCJ Decision.

In the Commonwealth Court appeal, Protz again argued that Section 306(a.2) of the Act violates Article II, Section I of the Pennsylvania Constitution. The Commonwealth Court agreed. The Court held that: the General Assembly has the power to make laws, but it cannot constitutionally delegate that power to any other branch of government or to any other body. The en banc panel agreed with Protz that Section 306(a.2) requirement that physicians use the “most recent edition” of the AMA Guides violates Article II Section I. The reasoning is that the assessment of impairment is placed in the hands of “another body”. The AMA could (and did) change the Guides without consulting the PA General Assembly. In effect, Pennsylvania law would change without legislative review or action.

The Commonwealth Court declared Section 306(a.2) unconstitutional, only in so far as it proactively approved versions of the AMA Guides beyond the Fourth Edition, without legislative review. The Court preserved a portion of the IRE remedy and remanded the Protz case to the WCJ with instructions to apply the Fourth Edition of the Guides, which was the version in existence when the General Assembly enacted Section 306(a.2) in 1996.

The Supreme Court Decision

Both Employee and Employer appealed the Commonwealth Court decision.
Justice Wecht authored this plurality opinion. First, he reviewed the non-delegation issue. The school district argued that the General Assembly is free to adopt current and future standards that are published by a well recognized independent authority. Protz argued that Section 306(a.2) violates the non-delegation doctrine as it gives the AMA unfettered discretion over Pennsylvania’s impairment rating methodology.

At the heart of the non-delegation doctrine is the principle that the General Assembly cannot delegate “to any other branch of government or to any other body or authority” the power to make law. However, the Constitution does permit the General Assembly, in some instances, to assign authority in its discretion, to execute or administer a law. The Constitution imposes two fundamental limitations when the General Assembly acts in this matter. First, the General Assembly must make “the basic policy choices”. Second, the General Assembly must include “adequate standards which will guide and restrain the exercise of the delegate administrative functions”.

The Supreme Court reviewed its prior decisions regarding the non-delegation issue. The Court concluded the authority delegated to the AMA in Section 306(a.2) is even more broad and unbridled than prior statutes which were reviewed and held to have violated the non-delegation doctrine (citing West Philadelphia Achievement Charter Elementary School (Pa. 2016)).

The Supreme Court found that the General Assembly did not favor any particular policies relative to the AMA Guides methodology for grading impairments nor did it prescribe any standards to guide and restrain the AMA’s discretion to create such a methodology. The Court speculated that the AMA could concoct a formula which would yield an impairment rating guide which could deem nearly every claimant to be at least 50% impaired or to the contrary to deem that almost no one exceeds a 50% threshold or the AMA could concoct anything in-between those two extremes.

The Supreme Court noted that the General Assembly did not include any procedural
mechanisms within the Section 306(a.2 )which the court has previously considered essential to protect against administrative arbitrariness and caprice. For example, the General Assembly did not require the AMA to hold hearings, accept public comments or explain the grounds for its methodology in a reasoned opinion, which then could be subject to judicial review.
It is noteworthy that The Supreme Court cited several medical literature articles regarding the flaws in the AMA Guides, including a group of physicians who authored a chapter in the 5th edition Guides!

Now that the Court concluded “most recent edition language” is unconstitutional could the IRE remedy be preserved, based upon utilization of the 4th edition, which was the Guide available at the time the 1996 amendment?

Unfortunately the answer was a resounding “NO”.

The Supreme Court determined that the Commonwealth Court erred in remanding the Protz case to the WCJ with instructions to apply the Fourth Edition of The Guides. 

The Court rejected the argument that the Fourth Edition of The Guides was in existence at the time the statute was enacted and it could have been incorporated by reference by the General Assembly.

The Supreme Court rejected this analysis as the statute did not specifically require use of the Fourth Edition of The Guides; rather the statute required the use of the “most recent edition” of the Guides.
The Supreme Court rejected the argument that striking the unconstitutional “most recent edition” language would allow the remainder of Section 306(a.2) to remain an effective remedy. 

The Court concluded that removal of the offending language renders the remainder of Section 306(a.2) incomprehensible. This Section was viewed as a paradigmatic example of a law containing valid provisions that are inseparable from void positions. The Court concluded – we must strike Section 306(a.2), in its entirety.

Recommendations for Cases with Past Impairment Rating Evaluation Determinations

1.       Situations where you must issue a supplemental agreement to recognize the modification of partial status to total disability status –

                                I.            “Open Cases- currently  pending before WCJ, WCAB, and Commonwealth Court”

                              II.            “Cases with Impairment Rating Determinations within 500 week  period”

a)      Ask claimant for a settlement demand.
b)      Make a settlement offer.
c)       Schedule an IME, to obtain a current physical capacity opinion.
d)      Retain a Vocational Expert to interview claimant, to perform a labor market survey and to prepare an Earning Power Assessment Report.
e)      Contact the Employer. Can they make a modified duty (even part-time) job offer to Employee, to commence (re-start) the 500 week clock.
f)      Determine if claimant has “retired” or withdrawn from the work force.
g)      Determine if claimant is working.

2.       In situations where you it is uncertain that benefit status must be voluntarily modified

                                I.            Claimant already paid 500 weeks of partial disability benefit status

a)      Ask claimant for a settlement demand
b)      Make a settlement offer
c)       Schedule an IME, obtain physical capacity opinion

3.       PENALTY assessment  for violation of the Act

a)      Will be available in “open” cases, if timely modification is refused.
b)      Reasonable time to modify benefit status – 21 days from request (?).
c)       “Closed” cases- possibility of penalty is less likely, as there is a legitimate argument as to entitlement of modification – at this point

4.       ATTORNEY FEE assessment for unreasonable contest

a.       Will be available in “open” cases, if timely modification is refused and litigation is required.
b.      “Closed” cases- possibility of attorney fee assessment is less likely, as there is a legitimate argument as to claimant entitlement of modification of benefit status – at this point.
This analysis may change, as appellate caselaw develops.


 Remember, these comments are not intended to be legal advice. Each case is unique and must be discussed at length, after you hire an attorney.

Friday, January 13, 2017

2017 Pennsylvania Workers' Compensation Maximum Rate

2017 Pennsylvania  Workers' Compensation Maximum Rate Announced

The Department of Labor Industry announced, based upon the statewide average weekly wage, as determined by the Department of Labor & Industry, the maximum compensation rate payable under the Pennsylvania Workers' Compensation Act, Article 1, subsections 105.1 and 105.2 shall be $995.00 per week for injuries occurring on and after January 1, 2017.

For purposes of calculating the update to payments for medical treatment rendered on and after January 1, 2017, the percentage increase in the Statewide Average Weekly Wage was 1.7 percent.

The maximum weekly compensation is $995.00.

Employees earning $746.26 to $1,492.50 will be paid at a rate of 66 2/3% of their earnings.

Employees earning $552.78 to $746.25 will be paid at a rate of $497.50.

Employees earning less than $552.77 will be paid at a rate of 90% of their earnings.

The correct calculation of the injured employee's average weekly wage may become complicated for a number of reasons:

  • bonuses; 
  • vacation pay;
  • profit sharing;
  • commissions; 
  • concurrent employment;
  • self-employment;
  • periods of layoff; 
  • limited duration of employment;
  • seasonal employment;
  • etc ...
Do not hesitate to contact your workers' compensation attorney to review any Average Weekly Wage and Benefit Rate questions.

Wednesday, December 28, 2016

Employers may seek reimbursement of Claimant Attorney Fees assessed for an Unreasonable Contest

Employers and Insurers may recover Claimant Attorney Fees assessed for an Unreasonable Contest, when reversing that award on appeal

The Workers’ Compensation Act allows a Worker Compensation Judge (WCJ) to award claimant attorney fees where there is an unreasonable contest of a petition. (See: § 440). The WCJ must make a finding as to the amount and the length of time for which such counsel fee is payable based upon the complexity of the factual and legal issues involved, the skill required, the duration of the proceedings and the  time and effort required and actually expended. (See: § 440(b)). 

In cases where a Workers’ Compensation Judge  awards  claimant attorney fees for an unreasonable contest and the Employer/ Insurer is successful on appeal to reverse that award - there was no clear legal precedent to require the claimant attorney to refund the unreasonable contest attorney fees, to which they were no longer entitled.

A recent decision of the Commonwealth Court of Pennsylvania has determined that the Employer and Insurer may request a WCJ order directing the claimant counsel to refund unreasonable contest fees, where Employer is successful on appeal to reverse that award. See: County of Allegheny v. WCAB (Parker) No. 82 C.D. 2016 and No. 112 C.D. 2016 filed on December 20, 2016.

Factual and Procedural History
In the underlying litigation, in 2007 the Employer filed a petition for suspension of total disability benefits payable for a 1993 shoulder injury. The Employer argued that claimant was offered and refused a job within his work restrictions. Employer also argued that claimant had voluntarily withdrawn from the work force. 

In 2008, the Workers’ Compensation Judge granted employer suspension petition, finding that claimant, who was 80 years old at the time, had failed to follow through in good faith on a job referral within his physical limitations from his shoulder injury. He had completely withdrawn from the work force as a result of his age and medical conditions unrelated to his work related shoulder injury.

Claimant appealed the WCJ 2008 order of suspension. On appeal,  the Workers’ Compensation Appeal Board (WCAB) 2009 decision reversed the suspension order on the basis that Employer was barred by the legal doctrine of collateral estoppel from requesting a 2007 suspension as an earlier 2004 WCJ decision had denied a prior suspension petition.  To add insult to injury, the WCAB held that claimant was entitled to unreasonable contest attorney fees and remanded the case for the WCJ to determine the amount of those fees. [Employer petitioned for review to the Commonwealth Court, but the petition was deemed premature due to the remand nature of the WCAB order].

On remand, as directed, the WCJ 2009 decision awarded claimant attorney fees for the litigation of the 2007 suspension petition. On Claimant and Employer cross-appeals back to the WCAB, the 2011 Appeal Board decision modified that WCJ order and directed the payment of additional counsel fees for the work performed in the claimant’s appeal from the 2008 WCJ suspension decision, in addition to the counsel fees for litigation of the 2007 suspension petition.

Employer filed a Petition for Review of the WCAB 2011 decision to the Commonwealth Court. Employer argued that the WCAB reversal of the 2008 WCJ suspension order was erroneous as a matter of law. The direction for assessment of unreasonable contest attorney fees for litigation of the 2007 suspension petition was erroneous as a matter of law. The assessment of additional counsel fees regarding claimant’s appeal from the WCJ 2008 suspension order was erroneous as a matter of law.

In the Employer appeal to the Commonwealth Court from the WCAB 2011 order, the Employer requested a supersedeas of compensation payments to claimant, including payment of attorney fees. The applications for supersedeas were denied by the Appeal Board and by the Commonwealth Court.  On this basis, employer issued payments, including claimant unreasonable contest attorney fees of $14,750.00.

In 2012 the Commonwealth Court reversed the WCAB 2009 and 2011 decisions. The Court ruled that the Employer’s 2007 suspension petition was not barred by the legal doctrine of collateral estoppel as the 2007 factual and legal issues were not identical to the issues presented in the 2004 WCJ decision. On this basis, the WCAB erred as a matter of law in reversing the suspension of claimant’s benefits directed by the WCJ 2008 decision. Claimant filed an Application for Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied.

After the denial of claimant’s petition for allowance of appeal, Employer filed an application for supersedeas fund reimbursement with the Bureau. Employer requested: reimbursement of the compensation paid to claimant; attorney fees paid under the contingent fee agreement; the $14,750.00 paid in unreasonable contest attorney fees. The Bureau approved a limited reimbursement for the compensation paid to claimant and the contingent attorney fee agreement. The Bureau properly denied the employers reimbursement requests for the $14,750.00 in unreasonable contest fees, as such fees were not reimbursable under §443 of the Act.

As reimbursement was not available from the supersedeas fund, Employer filed the petition which is the subject of this appeal, seeking an order from the WCJ to direct claimant counsel to refund the $14,750 unreasonable contest attorney fees. 

The WCJ denied Employer’s petition, as there was no clear legal precedent for such an order requiring the return of unreasonable contest attorney fees.

The WCJ also denied claimant’s request for the imposition that additional unreasonable contest fees for the litigation of the employer petition, as this petition was filed in good faith, in regards to an unsettled legal issue.

The WCAB affirmed the WCJ decision.

Employer appealed to the Commonwealth Court.

The Commonwealth Court reversed.

The decisions of the WCJ and WCAB erroneously concluded that Employer could not recover the award of unreasonable contest attorney fees - which were required to be paid by the underlying WCJ & WCAB orders – where Employer was successful to reverse that decision on appeal.

Commonwealth Court reasoning
The Commonwealth Court relied upon its prior decision in Barrett v. WCAB (Sunoco Inc.)(Pa. Cmwlth. 2010) which held that an employer and insurer may request the reimbursement of litigation costs which were awarded and paid, where that award is later reversed on appeal. In Barrett the court concluded that allowing claimant counsel to retain the legal costs to which he is no longer entitled, would result in an unjust enrichment. As the employer cannot recover the legal cost awards from the supersedeas fund, the employer would be deprived of any meaningful appeal form an erroneous cost award.

The reimbursement of legal costs would not impose a hardship on the claimant, as the recovery was sought directly from claimant’s counsel not from the claimant. In review of its prior decision in Barrett, the court referenced two unreported decisions which reached similar results. See: Daniels v. WCAB (Giancarli Constr. Co.) and Lewis-Briggs v. WCAB (DPW).

Although, the prior decision in Barrett involved litigation costs, the court believed the reasoning in Barrett is equally applicable to the unreasonable contest attorney fee issue. Where the employer has been erroneously ordered to pay litigation costs, the WCJ can order claimant’s counsel to refund that overpayment. The decision in Barrett compels the conclusion that the employer is entitled to an order requiring claimant counsel to refund the $14,750.00 in fees that were erroneously awarded.

Each factor in Barrett was present in the instant case. The Commonwealth Court reasoned that the award of litigation costs and the award of unreasonable contest attorney fees are both pursuant to §440 of the Act. The § 440 language includes unreasonable contest attorney fees as one of the types of costs incurred in litigation.

Both costs are payments in addition to the award of compensation to the claimant. To order a refund involves no payment of compensation benefits and denying a refund would result in unjust enrichment.

The court reasoned that the lack of any other remedy to the employer is the same for the unreasonable contest attorney fees as it is for other litigation costs. The supersedeas fund reimbursement is limited to “payments of compensation”. Only indemnity wage loss benefits and medical expense reimbursements can be recovered by the employer from the supersedeas fund following a successful appeal. There is no recourse from the supersedeas fund for unreasonable contest attorney fees or other litigation costs.

The court rejected the claimant and amicus curiae arguments that unreasonable contest attorney fees should be treated differently from other litigation costs. The court noted claimant compensation payments were over $106,000 for a period when his benefits should have been suspended. Claimant counsel received a 20% contingent attorney fee payment and claimant received over $84,000.00. The employer’s petition for reimbursement of the $14,750 of unreasonable contest fees does not request or require claimant or claimant counsel to return any of the compensation benefits paid following the supersedeas denial.

The court rejected arguments that allowing retention of improperly awarded unreasonable contest attorney fees was necessary or appropriate for the protection of claimant’s rights to obtain compensation, to which they are entitled. “An order to return fees erroneously awarded for unsuccessful litigation does not reduce (claimant) counsel’s ability to recover unreasonable contest attorney fees for successful claimants who are entitled fees nor does it reduce the amount of the fees received where unreasonable contest attorney fees are validly awarded.” (Slip opinion at p.10).

The court distinguished claimant argument which referenced that  claimant’s counsel are entitled to retain the 20% contingent attorney fees despite the fact the claimants may  ultimately be unsuccessful in litigation. These fees have a difference origin. They are paid out of claimant’s compensation. They are subject to reimbursement by the supersedeas fund, where unreasonable contest attorney fees are not.

Employer did not waive its right to seek a refund of unreasonable contest attorney fees in the 2011 appeal to the Court from the WCAB decision. Employer was not required to obtain an order from the Commonwealth Court before filing a petition to the WCJ for a refund of unreasonable contest attorney fees. “Until this Court reversed the Board’s 2009 decision on September 18, 2012, Employer had no basis for filing a petition for refund”. (Slip opinion p. 12).

President Judge Mary Hannah Leavitt joined in this opinion.

Judge Cosgrove wrote a dissenting opinion. The decision in Barrett – to refund deposition costs paid to claimant counsel – does not provide sufficient support for the reasoning to allow refund of unreasonable contest attorney fees.  


1. Review ALL litigation files where an adverse decision is REVERSED on appeal.
  •           If supersedeas was denied, prepare an application for reimbursement to the Bureau.       
  •      If litigation costs were paid to claimant counsel – request a refund.     
  •           If unreasonable contest attorney fees were paid – request a refund.

2. If claimant counsel will not voluntarily issue a refund – file a Petition to Review 
    Compensation with the Bureau.

QUERY: Does this new decision change one’s assessment of the necessity to file an appeal of an                 unreasonable contest finding?

In the past, one may have assessed the case and decided to forgo an appeal of the underlying claim issues - 

However, it may now be cost-effective to file an appeal of the unreasonable contest determination – as a refund is available.

Sunday, July 31, 2016

WCJ may reject unrebutted IRE medical expert opinion testimony

The Impairment Rating Evaluation (IRE) remedy allows the Employer and Insurer to attempt to limit liability for future wage loss benefits based upon a medical expert examination and opinion of impairment.
There are specific requirements to pursue the IRE remedy. The injured worker must receive 104 weeks of total disability payments. The Employer must file a request with the Bureau. The Bureau  assigns the request to a designated prequalified medical expert. An examination is conducted if the injured worker has reached maximum medical improvement.  
If the impairment rating is less than 50% based upon the AMA Guides to the Evaluation of Permanent Impairment (and the IRE request was made within 60days of the 104th week) the disability status of the worker "automatically" converts from total disability to partial disability of a duration of 500 weeks.
 If the IRE request is made more than 60 days after the 104th week, a petition to modify status must be filed and the traditional administrative adjudicatory process follows. 
In many cases, the only medical evidence introduced is the report of the IRE physician. In the absence of contrary medical evidence, the IRE petition is often granted.

What about the cases where the IRE physician opinions are unconvincing?

What are the employee legal arguments and remedies?

IA Construction Corporation v. WCAB (Rhodes) a decision of the Supreme Court of Pennsylvania authored by Chief Justice Saylor on May 25, 2016 addressed the validity of a workers compensation judge decision  to reject the opinion testimony of an IRE physician in the absence of contrary medical evidence.

Factual and Procedural Background 

Rhodes was injured in 2005 in a work-related motor vehicle accident. A WCJ granted a claim in 2007 for disability from  a traumatic brain injury with neck and back injuries. 
Several years later, Employer filed an IRE request and the Bureau assigned M. Bud Lateef MD a board certified specialist in Physical Medicine and Rehabilitation to conduct an evaluation. He assigned a 34% impairment based upon physical evaluation and application of the AMA Guides.  (6th Edition AMA Guides). 

Employer filed a petition to modify the employee disability status. Dr. Lateef testified he examined employee and confirmed 3 primary diagnoses: traumatic brain injury; cervical disc herniation; gait dysfunction from a spinal condition. Dr. Lateef assigned a discrete impairment rating to each diagnosis. Employee had reached maximum medical improvement. 
In the litigation of the Employer petition Employee did not testify. No medical testimony was presented on behalf of Employee. 
The Workers Compensation Judge denied the Employer modification petition and rejected the impairment rating of Dr. Lateef. The WCJ expressed a concern he "lumped " an array of discrete injuries, which were previously recognized in the WCJ claim petition decision,  into 3 categories. 
She believed his  cognitive injury assessment  was limited. Dr. Lateef was not a specialist in neurology. For these reasons the WCJ was unpersuaded by his opinion of the degree of impairment present. 

 A divided  WCAB affirmed the WCJ denial of the Employer petition, on the basis that the WCJ determines the credibility and weight assigned to the medical evidence. 

The Commonwealth Court reversed the WCJ denial of the IRE modification request.
The Court reasoned that Dr. Lateef met the statutory requirements for qualifications of physicians to conduct an IRE evaluation. He followed the methodology to conduct an impairment rating evaluation. The Court believed the WCJ lacked the authority to reject the medical expert opinion testimony on the basis that cognitive impairment was outside his area of medical specialty. This type of ruling would impose a standard in excess of those set forth in the statute.

Also the Court noted the WCJ findings must be based upon substantial evidence. For the WCJ to find the IRE is insufficient, there must be evidence in support of that finding. Here Employee produced no evidence. The WCJ did not reference any section of the AMA Guides in support of the conclusion that Dr. Lateef inappropriately grouped the injuries or erroneously calculated the impairment rating.

Supreme Court Decision reverses and reinstates WCJ rejection of medical evidence and denial of Employer Modification petition.
The Supreme Court reviews a number of critical points in the impairment rating evaluation procedure and remedy. As the Protz decision is pending the Court's consideration, regarding the constitutionality of the application of "subsequent" Editions of the AMA Guides (after the 4th Edition which was in effect at the time of the 1996 amendment), perhaps this section of the Workers' Compensation has gained the attention of the Court.

Here the Court considers the term "credibility" in its broadest sense, as a measure of the persuasiveness of the testimony. (as the medical witness testified via deposition, the WCJ did not assess his demeanor). The Court cites the often-recited principle that the WCJ is the fact finder and exclusive arbiter of credibility and evidentiary weight.

Pennsylvania does not apply an uncontradicted medical evidence rule in workers compensation cases. The decision below did not explain why there should be a departure from this long standing rule in our "traditional administrative process".

The substantial evidence rule does not apply to situations where the prevailing party did not present any evidence. Rather the focus is upon the weight afforded the evidence presented by the party with the burden of proof.

The Court agreed with the Employer's arguments that the WCJ explanations for her rejection of Dr. Lateef's opinions were unconvincing. There was no explanation how Dr. Lateef "lumping" of the medical conditions were inconsistent with the AMA Guides. However, the Court noted specific points where the medical evidence was lacking.

A WCJ may validly accord less weight to the underdeveloped out-of-specialty medical opinion testimony of the degree of impairment associated with a work-related traumatic brain injury, in the traditional administrative process.


1.   In IRE litigation, Employers and Insurers must consider the available avenues of attack of the IRE medical expert. It may be necessary to supplement the IRE report with an IME medical expert to buttress the weak points regarding diagnosis of conditions, assessment of MMI status, or application of the AMA Guides.

2. It is recommended to consider medical expert deposition testimony to explain, amplify and support the conclusions in the IRE report.

3.  As the WCJ will assess the "credibility" of the IRE medical evidence, we should consider supplementation of the evidentiary record with medical records of treatment, diagnostic test results and consultations which support the logic and reasoning of the IRE medical expert.

Wednesday, May 18, 2016

Workers' Compensation Insurer Reimbursement of Trauma Care - When 100% does not equal 100%

Workers' Compensation Insurer Reimbursement of Trauma Care.
The Pennsylvania Workers' Compensation Act requires the payment of reasonable and necessary medical expenses which are causally related to a compensable work injury.  In 1993, the Act was amended to allow reimbursement of medical expenses within a "fee cap" schedule based upon the Medicare reimbursement mechanism.  The Act was amended to provide for a utilization review procedure, whereby the Employer/Insurer could challenge the "reasonableness and necessity" of the medical treatment.  The 1993 amendments also allowed review of the timeliness or amount of the medical expense reimbursement via a medical fee review procedure

Medical fee disputes may arise in the context of treatment provided at an acute care facility to an injured worker with an immediate life-threatening or urgent injury.  These medical expenses are reimbursed at 100% of the usual and customary charge for these services, as they are not subject to reduction in amount by the medical fee cap provisions. 

Geisinger Health System and Geisinger Clinic v. Bureau of Workers' Compensation Fee Review Hearing Office (SWIF) is a reported decision of a panel of the Commonwealth Court authored by Senior Judge Pellegrini on April 21, 2016.  This decision examined the rate of reimbursement for treatment of a work-related injury at a trauma center for an acute, life-threatening or urgent injury. 

 Factual and Procedural Background

The facts in Geisinger were not disputed.  The employee was injured at work when a wooden board broke and lodged near his eye.  There is no dispute that the medical treatment was at a level one trauma center for life-threatening or urgent injuries.  The Provider submitted HCFA-1500 claim forms for payment of medical treatment by the Insurer.  Provider sought payment for services rendered in a level one trauma center at its usual and customary charges, i.e. its actual charges

The Insurer responded with an explanation of benefits letter (EOB) which recognized that treatment was provided at a level one trauma center for an immediately life-threatening or urgent injury; however, the EOB further stated that payment would be made: "as such usual, customary and reasonable rates for this geographic area have been utilized as the reimbursement methodology". 

Provider filed applications for Fee Review pursuant to Section 306(f.1) of the Act.  Provider sought reimbursement based upon its actual charges.  The Insurer did not reduce these charges to the medical fee cap schedule, rather insurer provided reimbursement based upon a usual and customary database at the 85th percentile.  

Medical Fee Review Section Administrative Review

After Provider filed the Application for Fee Review with the Bureau of Workers' Compensation, the Medical Fee Review Section circulated an administrative decision which concluded that the Insurer owed the provider an additional amount of reimbursement.  The Medical Fee Review section found the treatment met the criteria for reimbursement at an acute care or trauma facility.  Reimbursement was to be made at 100% of the actual charges of a provider

Insurer filed a request for hearing for review of the Medical Fee Review Section administrative decision.  At this hearing, Insurer submitted the testimony of the re-pricing manager of its third-party vendor.  The re-pricing manager testified regarding her familiarity with the Workers' Compensation Act and the Medical Cost Containment regulations.  She explained that in review of trauma cases, rather than applying the workers' compensation claim Medical Fee Cap Schedule, she applies the usual and customary information at the 85th percentile.  This information is obtained from the FAIR Health database.  

The re-pricing manager testified that she utilized this definition of "usual and customary charge" based upon the 2011 Statement of Purpose of Adoption of Usual and Customary Charge Reference posted by the Pennsylvania Department of Labor & Industry, such that effective November 1, 2010, fee review applications would be resolved by the Department utilizing the 85th percentile of the MDR (Market Data Retrieval) database, published by Ingenix to determine the usual and customary charges defined by 34 Pa. § Section 127.3.

 Hearing Officer Determination

The Hearing Officer found the testimony of the re-pricing manager to be credible, in its entirety.  The Hearing Officer reversed the medical fee review determination.  The Hearing Officer determined Insurer properly reimbursed Provider at 100% of the usual and customary charge for services in that geographic region for the services rendered to the injured worker. 

The Hearing Officer determination was based upon the conclusion that the insurer's payment to the provider should be based upon "100% of the usual and customary charge" as defined in 34 Pa. § Section 127.3 rather than 100% of the provider's actual charge.  The definition of "usual and customary charge" at 34 Pa. Code § 127.3 was "the charge most often made by providers of similar training, experience and licensure for a specific treatment, accommodation, product or service in the geographic area or the treatment, accommodation, product or services provided." 

The Hearing Officer further explained this determination by noting that Section 306(f.1)(10) of the Act clearly states that services rendered in the trauma center shall be paid at the usual and customary rate, not at the provider's usual and customary charge or at the provider's actual charge.  Regulations Section 127.128(a) and (b) reference the term "the usual and customary rate".  Admittedly, Regulations Section 127.128(c) references "the provider's usual and customary charge".  

The Hearing Officer reasoned that the language "the usual and customary charge" appears in three sections.  There is a separate definition for "actual charge".  This led the Hearing Officer to conclude that the purpose of the regulations was to ensure proper reimbursement at 100% of the usual and customary charge for the specific treatment rendered in the geographic area where that specific treatment was provided.  It is also the purpose of the regulation so as to prevent providers from charging excessive fees for treatment and services rendered to injured workers.

Commonwealth Court Appeal of Provider

Provider appealed the determination of the Hearing Officer to the Commonwealth Court.  The Court reviewed the decision and reasoning of the hearing officer and affirmed this decision. 

The Court rejected Provider's argument that it is entitled to be reimbursed for immediately life threatening or urgent injuries at a level I trauma center at 100% of their usual and customary charge, i.e. their actual charge

The Court reasoned that the trauma center exception in Section 306(f.1)(10) of the Act states that acute care provided in a trauma or burn center to injured workers with life-threatening or urgent injuries is reimbursed at "the usual and customary charge".  The term "usual and customary charge" appears in several portions of the statute and regulations.  The Court specifically referenced 306(f.1)(3)(i) and 34 Pa. Code § 102.

The term "usual and customary charge" is defined at Section 109 of the Act "usual and customary charge means the charge most often made by providers or of similar training, experience and licensure for a specific treatment, accommodation, product or service in the geographic area where the treatment, accommodation, product or service is provided.  (76 P.S. § 29).  The Court noted Section 127.3 of the Medical Cost Containment Regulations reflects the same terminology. 

In review of the statutory construction and interpretation of the language, the Court noted that one must take into consideration the context of the language.  The Court noted that one provision, Regulation 127.128(c) utilized the definition of usual and customary charge which was synonymous with the provider's actual charge.  However, the Court noted that when a regulation is at variance with the language of the statute, the regulation is ineffective to change the statute's meaning.  Under the Rules of Statutory Construction, a defined term is to be applied unless a different meaning can be ascribed to the word or phrase because of its context.

In this case, the Court found that there was nothing in the language of Section 306(f.1)(10) of the Act that indicates that the "usual and customary charge" language is different from the definition at Section 109 of the Act, where that term is defined as "the charge most often made by providers of similar training, experience …". 

The Court affirmed the Hearing Officer determination that "the usual and customary charge" is not the equivalent of "the actual charge" of a provider. 

This decision is significant in that it clarifies that the treatment at a trauma center for acute or life-threatening care is not reimbursed at 100% of the actual charge submitted by the provider.  The correct method of reimbursement is to utilize the 85th percentile of the usual and customary database.  As a practical matter, this clarification of the required reimbursement rates for acute care may result in significant savings,  where significant treatment has been provided. 


  1. All Workers' Compensation Insurers must utilize an experienced individual (or vendor) to perform the medical expense review and re-pricing in all cases, including acute care provided at the trauma center for life-threatening or urgent injury.
  1. It is essential that a timely review is performed (within 30 days of the medical statement) and any request for a review by the Medical Fee Review Section is properly filed.
  1. Properly prepare the Explanation of Benefits (EOB) letter to the Provider consistent with Regulation 127.209.  When stating the reasons for changing the Provider's codes or reimbursement, provide a detailed written explanation.
  1. Confirm that the Provider has properly and timely filed an Application for Fee Review.  The application must be filed no more than 30 days following notification of a disputed treatment or 90 days following the original billing date of the treatment, which is the subject of the fee dispute, whichever is later.
  1. A Provider or Insurer has the right to contest an adverse administrative decision from the Medical Fee Review Section.  The contest of the administrative decision and request for hearing must be filed within 30 days of the date of the decision in the fee review.
  1. Appeal of the Hearing Officer Medical Fee Review Determination is made to the Commonwealth Court.  An appeal must be filed within 30 days of the mailing of the Hearing Officer determination.   

Thursday, April 21, 2016

Assessing Liability for "Separate" Disability- beyond the "Loss of Use" Injury

Assessing Disability beyond the Loss of Use Injury.

A work injury which results in a permanent bodily loss of use for all practical intents and purposes is compensated pursuant to the schedule of benefit durations enumerated at Section 306(c).

If the work injury includes disability beyond the loss of use, the injured employee is entitled to total disability benefits of an indeterminate duration, pursuant to Section 306 (a) ... to be followed by the payment of specific loss benefits.

The interaction of section 306(a) benefits (for total or partial disability) and 306(c) benefits (loss of use) is sometimes referred to as a "shield versus sword" situation. In certain circumstances the Employer desires the limitation of benefits to a specific loss schedule, rather than liability for total disability of an indeterminate duration. Conversely, the Employee may seek specific loss benefits where they have returned to work.

A recent appellate case demonstrates a number of legal concepts may interact when the scope of the "injury" and the extent of "disability" are contested...

Lindemuth v. WCAB (Strishock Coal Co.) a published panel decision of the Commonwealth Court of Pennsylvania authored by Judge Cohn-Jubelirer on February 24, 2016, analyzed the interrelated legal issues of: (1) an employee's entitlement to review/modify specific loss benefits to total disability benefit status, and (2) the application of the legal doctrine of collateral estoppel - to preclude Employee/Employer arguments regarding the extent/description of the work injury.

The lengthy litigation was reviewed in a comprehensive 28 page decision.
For our discussion, we will focus upon:

  •  the Employee arguments to expand the loss of use status to a total disability status;                  
  •   the Employer arguments that Employee's remedies were limited by the prior litigation result.

Factual and Procedural Background

Employee was injured in a 2005 battery explosion. Chemicals, battery acid and shrapnel resulted in injuries to the right eye, left eye and face. Total disability benefits were voluntarily commenced via Notice of Compensation Payable. The accepted work injury was described as: "right and left eyes, face ... shrapnel and chemical injuries to eyes and face"

Employee filed a Claim petition in 2006 to assert his additional entitlement to loss of use benefits for the right eye, 80% loss of use of the left eye and facial scarring. (eligibility for facial scarring is also addressed in the Section 306(c) Loss of Use provisions).

Employer filed a Review petition of Employee total disability status, arguing that the work injury was limited to the loss of use of the right eye and that employee did not suffer any disability separate from the specific loss of the right eye, so as to be entitled to a total disability benefit status.

 2009 WCJ decision

Employee proved he sustained a loss of use of the right eye.
Employee failed to prove there was disability separate and apart from the disability associated with that loss of use of the right eye.
Employee failed to prove there was a loss of use of the left eye or any related residual injury or disability.

Employee successfully established that the work injury resulted in headaches, which required medical treatment, but these headaches did not result in any disability separate and apart from the right eye loss of use.

Employee successfully established the development of a post traumatic stress disorder and an adjustment disorder, but these additional injury descriptions did not result in any additional disability separate and apart from the right eye loss of use.

This 2009 WCJ decision was affirmed by the WCAB and Commonwealth Court.

Employee filed the instant petitions in April 2011.
(before the 2012 Commonwealth Court decision).
Claimant petitions were filed for: Review Medical Treatment; Modify Compensation; Review Compensation; Review Pension Benefit Offset; Reinstate Compensation.

Same WCJ presided.
What did employee want?
Reinstatement of Total Disability benefits (unlimited duration) due to increased frequency, duration and intensity of head pain caused by the work injury. ( in other words, headaches as an additional disability separate and apart from disability usually normally associated with the loss of use of the right eye.

2013 WCJ decision

The original October 2005 work injury did not worsen since the time of the 2009 WCJ decision.
There was no proof of a "disability separate and apart " from the 2009 injury description.
The injury was not amended to include a trigeminal nerve injury.

Employee subjective reports of increased frequency and intensity of headaches were not causally related to the work injury. (The prescribed narcotic medication was not related).
There was no worsening of condition so as to create a disability separate and apart, from the loss of use of the right eye.
[Employee evidence was credible only in regards to an unappealed UR petition issue].

WCJ found Employee and his medical expert, Dr. Kratz not credible regarding a worsening of his condition. WCJ noted, Employee treating physician Dr. Wirth was not aware of any worsening of headaches. Dr. Wirth believed there was just a continuation of symptoms.

Drs. Kratz and Wirth medical opinions were based solely on Employee's subjective reports, they never observed increasing, severe headaches. WCJ resolved conflicting medical evidence, as there was a documented difference regarding the dosage of medications [a point pertinent to a "worsening argument].
However, Kratz did not find any difference on physical examination despite assertions of increasing headaches and worsening of Employee condition. WCJ's observations of Employee, from time of prior litigation to present, were said to reflect no indication of any significant change, although Employee did appear subdued.

Employer medical witness Dr. Richard Kasden was found credible. Employee's complaints were not consistent with a trigeminal nerve condition. (Medications for that condition was said to be ineffective).  Neurological examination and MRI scan of the brain did not show any objective evidence to support Employee's headache complaints.

WCAB Appeal by Employee

1. WCJ ruling that he did not have a trigeminal nerve injury AND no longer required headache treatment- was barred by the doctrine of collateral estoppel
2. WCJ findings were not supported by substantial evidence; the credibility determinations were insufficient.

WCAB concluded Employee was barred by the legal doctrine of collateral estoppel from raising the issue in the April 2011 petitions that he sustained a trigeminal nerve injury. The description of injury issue was fully litigated in 2009.
WCJ was not bound by his prior findings in the 2009 decision to now find a trigeminal nerve injury.
WCJ decision was supported by evidence.

[side issues: Employee appeal included an argument that WCJ erred in not awarding attorney fees and all litigation costs. WCAB upheld pro rata costs award, only costs on UR petition. A reasonable contest existed, no attorney fees were due. ]

Commonwealth Court Decision

General rule # 1. Injuries, including those that result in a loss of earnings, that normally flow from the specific loss injuries are considered compensated by the specific loss benefits. Citing: Sharon Steel (Pa. Cmwlth. 2002).

General Rule #2. If the injury suffered is separate and apart from a specific loss that results in a loss of earnings, a claimant may receive Section 306(a) total disability benefits or Section 306(b) partial disability benefits, in addition to the Section 306(c) specific loss benefits. Citing: Faulkner Cadillac (Pa. Cmwlth. 2003).

General Rule #3. A claimant seeking concurrent specific loss and disability benefits must prove that he/she has a disability separate and apart from that which normally follows a specific loss injury. Citing: Richardson (Pa. Cmwlth. 1997).

General Rule #4. If a claimant fails to prove a disability separate and apart from the loss of use, the disability benefits are considered suspended. However, in subsequent litigation, the WCJ has the authority (section 413(a)) to reinstate or modify Employee's benefit status, IF claimant proves his injury has worsened and results in a total disability.

I. Collateral Estoppel argument
Employee argued the WCAB erred in applying the collateral estoppel doctrine to conclude he was barred from arguing that his work injury included a trigeminal nerve injury.

Employee argued the WCAB erred by failing to conclude the WCJ was barred from finding his headaches were not causally related to his work injury, asserting the WCJ made a contrary finding in the 2009 decision.

The Court agreed.
In 2009 the WCJ found the work injury resulted in a trigeminal nerve injury. The 2013 decision was contrary. The doctrine of collateral estoppel would bind the WCJ to the 2009 finding. The Court reviewed the collateral estoppel argument criteria: The legal issue was the same; This issue was actually litigated; This issue was essential and material to the adjudication; The parties had a full and fair opportunity to litigate the issue in question. Citing: Stiles (Pa. Cmwlth. 2004).

However, this error by the WCJ is not relevant to the instant matter.

In the 2009 decision the WCJ found Employee suffered a trigeminal nerve injury as a result of his work injury. Yet in the 2009 decision Employee failed to proof there was disability, separate and apart from the specific loss of the right eye. Injury and disability are not synonymous in this instance.

In 2009 the WCJ found headaches were caused by the work injury but they did not constitute a disability, separate and apart from the specific loss.

In 2013 the issue the WCJ had to decide was whether the claimant suffered from a worsening of headaches, such that this (worsened) condition would now constitute a disability separate and apart from the specific loss. In 2013 the WCJ concluded that claimant failed to prove a change or worsening of his condition since the 2009 decision.

The 2009 litigation addressed the Employee request to include headaches as part of the work-related condition. The headaches were alleged to be caused by the 2005 trigeminal nerve injury.
That 2009 issue did not bind the WCJ on the 2013 issues ... as the 2013 issue was a different!
 In 2013 the WCJ was asked to consider the worsening of Employee's headaches as a separate disability. As these two issues are different, the doctrine of collateral estoppel did not apply, so as to restrict the WCJ in his 2013 conclusions.

II. Substantial Evidence Argument
Employee argued that substantial competent medical evidence did not support the findings authored by the WCJ in the 2013 decision.
The Court disagreed. There was substantial competent medical evidence (Dr. Kasden) to support the 2013 finding that Employee's headaches did not worsen, nor were the headaches disabling in nature. Conflicting evidence was presented in Claimant testimony, his wife's testimony and testimony of Drs. Katz and Wirths. However, it is well-established that the WCJ is free to accept the testimony of any witness, in whole or in part. This resolution of conflicting evidence by the WCJ is not an error of law, where there is supporting substantial evidence.

III. Reasoned Decision Argument
The WCJ must issue a reasoned decision as per the section 422(a) requirement that the decision "allows for adequate appellate review". In a case with conflicting evidence, the WCJ must adequately explain the reasons for rejecting or accepting competent evidence. Here, in the 2013 decision the WCJ provided adequate  reasons for crediting Dr. Kasden and for rejecting Employee evidence.

IV. Attorney Fee Argument
Claimant argued the WCJ should have awarded attorney fees payable by Employer, or at least a portion of the requested attorney fees, as he prevailed in the UR Determination Review petition. The Court rejected this argument. Here was not an unreasonable contest of the UR issue as Employer did not contest the UR issues. All of the remaining contested issues were decided in Employers favor. On this basis, it is correct to deny the imposition of attorney fees payable by Employer.


1. The compensation of a specific loss may be advantageous to the Employer, in the circumstances where the injuries are considered to normally flow from the specific loss. However, where there is disability, that is separate and apart from the specific loss, a claimant may receive indemnity wage loss benefits for total disability, in addition to the subsequent payment of specific loss benefits.

2. A competent credible medical opinion is required to address the "separate and apart" question. Further, an experienced medical examiner is necessary to address and explain the basis for a conclusion that the disability is limited to a specific loss. A credible explanation to the WCJ will support the necessary findings. Typically the parties can muster competent medical expert opinions, in support of their conflicting legal arguments. In my opinion, the logic and detail of the medical expert explanation may be a decisive factor in the WCJ assessment of credibility and the weight to be assigned to that medical evidence.

3. Application of the legal doctrine of collateral estoppel (and its first cousin, res judicata) may be confusing. In the long-standing workers compensation case, with multiple successive petitions, a careful analysis of the issues presented is required. Another related legal argument, which may arise, is the argument for a waiver of issues which were not preserved through out the litigation. When a workers compensation case presents with multiple petitions and a series of decisions,it is incumbent upon the Defense Counsel to identify the fully litigated issues and to identify the viable, undecided factual and legal issues.

A Best Practice would require the careful assessment of the factual and legal issues presented at the time the subsequent petitions are filed.  This legal assessment is not in the category of the quick "what do you think" telephone call. The above case demonstrates the importance of these legal arguments in obtaining a successful litigation and appellate result.